



















The American Philosophy of Govern 
ment and its Application to the 
Annexed Countries 


Bv 

ALPHEUS HENRY SNOW 

Washington, D. C. 


M 


Reprinted from the Proceedings o f the 
American Political Science Association , IQ13-IQ14 









Reprinted from The Proceedings of The American Political Science Association, 1913-1914 


THE AMERICAN PHILOSOPHY OF GOVERNMENT AND 
ITS APPLICATION TO THE ANNEXED COUNTRIES 

BY ALPHEUS HENRY SNOW 
Washington, D. C. 

From the time of the founding of the United States by the Declaration 
of Independence until the Civil War, the existence of slavery obscured 
our philosophy of government as set forth in that great document, and 
as implied in the Constitution and its original amendments. The Civil 
War abolished slavery and restored our original philosophy. The 
adoption of the fourteenth amendment, placing upon the United States 
the responsibility for securing the fundamental rights of the individual, 
even against state action, was the logical effect of the restored philosophy. 
The annexation of distant regions, as the result of the Spanish War, and 
the necessity of applying to them our philosophy and system in some 
appropriate and permanent manner, compelled us again to consider our 
fundamental ideas, and again to declare our fundamental principles. 

As a result from these epochal events in our history, our philosophy 
has been defined and reduced to its essential elements. It may, as it 
seems, be summed up in two propositions. The first is, that there are 
certain fundamental rights of each individual against all other individu¬ 
als under a supreme law which we recognize—rights which are so funda¬ 
mental that they are universal and unalienable and therefore beyond 
the just power of any government or of all the people of the nation or of 
the world to abolish or diminish; and that therefore there are certain 
fundamental and unalienable rights of each individual against govern¬ 
ments, which we believe can best be made effective by constitutional 
prohibitions forbidding certain kinds of governmental action found by 
experience to be destructive of or dangerous to these fundamental rights, 
contained in written constitutions and made the most fundamental part 
of the supreme law of the land. The second proposition is, that all 
organized communities, however great or small, and whether independent 
or not, are corporations having for their object the securing of these 
fundamental rights; and that hence, like other corporations, they are 
democratic, representative and federal in form and have written con¬ 
stitutions. 

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American Historical Review 
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The conception of fundamental and unalienable rights of the individu¬ 
al under a supreme law which is recognized by all persons and all govern¬ 
ments is not new. Eve^ one must recognize that there is a great differ¬ 
ence in importance between the various rights which an individual 
enjoys in the society of others. Some are so important that all would 
agree that they are essential to life and to the existence of orderly society. 
At the other pole are rights which are trivial and unimportant. This 
difference has always been perceived. The Ten Commandments were 
fundamental law for the people of Israel; being regarded by them as a 
“covenant” made by God with man, the performance of which by man 
was essential to individual liberty and peaceful society. The people of 
Israel considered that they had fundamental rights and duties under the 
Ten Commandments, which no government could justly take away. 
All governmental action, so long as the Ten Commandments remained 
the fundamental law, was regarded as “ judgment, ” since all questions 
of government had to be tested by the Commandments; and rulers were 
properly called “judges.” So also the two “Great Commandments of 
the Law” laid down by Jesus as even more fundamental than the Ten 
Commandments of Moses, are principles of fundamental and universal 
law, under which Christians consider that each person has fundamental 
rights which are essential to individual liberty and to peaceful society, 
and which no government can take away. 

In modern times we state the fundamental rights of the individual 
affirmatively, according to the Christian method, and hold that there is 
a supreme fundamental and universal law under which each individual 
has the fundamental and unalienable right, as against all other indi¬ 
viduals, to do anything which may enable him, in harmonious relation¬ 
ship and cooperation with all others, to utilize the physical and psychical 
resources of the universe for his highest development as a natural and 
spiritual being, to the extent that this is possible having due regard to 
the equal rights of all others to utilize these same resources for these 
same purposes. The purpose of government is to secure the individual 
in the enjoyment of these rights. This power and duty of government 
to secure fundamental rights implies that it is the power and duty of 
government to extend the self-developing powers of the individual over 
the forces of nature by providing and maintaining the means and proc¬ 
esses necessary for common use in the general self-developing activi¬ 
ties, and that it is also the power and duty of government to release the 
self-developing powers of the individual from improper obstruction by 
restraining and punishing individuals who infringe these rights of other 
individuals. 


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The philosophic basis of this supreme fundamental and universal law 
under which exist certain fundamental rights of the individual which are 
universal and unalienable, is stated in the Declaration of Independence 
to be the proposition, held as a self-evident truth, that all men are created 
equal. From this proposition the Declaration asserts that it follows as 
a self-evident truth that all men are endowed by their Creator with 
certain unalienable rights, among which are the rights of life, liberty 
and the pursuit of happiness. This is of course the religious explana¬ 
tion; for both these propositions imply belief in a personal God and Crea¬ 
tor before whom all men are equal. It is God, the Creator, accord¬ 
ing to this explanation, who has established the supreme universal 
law which all men can and must recognize under penalty of reversion 
to barbarism. Under this law all men, according to the Declaration, 
have certain fundamental rights, called the rights of life, liberty and the 
pursuit of happiness. These rights are common to all men—that is, 
universal—and also unalienable—that is, such that no one can part 
with them by his own act, even to a government; and such that they can 
not be taken from any one, even by a government, but can only be 
forfeited to society for anti-human and anti-social acts done, and 
through appropriate action of government regulating the forfeiture. 
These rights are said to arise by endowment of the Creator; the evi¬ 
dent meaning being that they are rights corresponding to the attributes 
with which all men are equally endowed under a supreme and divine 
law. These attributes are of course life, motion and the ability to use 
things and natural forces for the support of life, for locomotion, and for 
the pursuit of happiness. From the right to the pursuit of happiness 
is evidently derived the right to the exclusive possession of things and 
natural forces which we call the right of property; but in the view of the 
Declaration, the right of property is limited by the common right of all 
to the pursuit of happiness. This religious basis for these universal and 
unalienable rights is doubtless the true basis. Lincoln so believed, as 
his Gettysburg address shows; for in that he declared that the whole 
American philosophy and system is based on the proposition that all 
men are created equal. It must, however, be recognized that this 
religious explanation is likely to be accepted only among that part of 
mankind which believes in God according to the revelation of Him made 
in the Christian Bible. 

Another basis for these fundamental rights is that which we obtain 
by means of philosophy—that is, by the application of reason to facts 
of experience. In this view these fundamental and unalienable rights 


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are created by natural law, or the law of nature, and are called natural 
rights, because they are such rights as correspond to the common and 
universal human attributes of life, motion, and the ability to use 
things and natural forces for the support of life, for locomotion and for 
the pursuit of happiness—the right of exclusive use by each person of 
some part of the whole mass of things and some part of the natural 
forces, which we call the right of property, being to some extent natural 
and to some extent artificial. The existence of these natural rights is 
rationally and practically justified on the ground that they are necessary 
to individual liberty and peaceful organized society. 

Still another basis for these fundamental and unalienable rights is 
that which we gain from the science of practical politics and jurispru¬ 
dence. According to these sciences, all law emanates from an organized 
society and is the formulated expression of the conscience and will of 
the society, which the society enforces upon its members. Universal 
rights can, in this view, arise only from a law which is made by the organ¬ 
ized society composed of all the peoples and organized communities 
of the world, and which is supreme even over the so-called independent 
nations for common and general purposes, so that its formulations of 
universal principles bind all nations and peoples. To this great organ¬ 
ized society we apply the name of “the society of nations.” In this 
view, the fundamental rights may be said to exist under the law of the 
society of nations, or under “the law of nations ,” as it is sometimes 
called. The law of nations, on this hypothesis, makes these rights un¬ 
alienable by any individual on the ground that they must be so unalien¬ 
able throughout the whole world in order that individual liberty and 
peaceful organized society may everywhere exist. 

But whether we regard the notion that there is a supreme universal 
law creating certain fundamental and unalienable rights of the indi¬ 
vidual, as a religious proposition derived from our faith in a personal 
God and Creator of all men, or as a philosophical proposition derived 
from reason and experience, or as a legal proposition derived from the 
conception of the peoples and nations of the world as a single organized 
society and the formulator and legislator of a supreme universal law 
which binds all nations to the observance of these rights as unalienable, 
the result is the same, and the fundamental and unalienable rights are 
a fact. 

As there are therefore undoubtedly fundamental and unalienable 
rights of the individual against all other individuals under a supreme 
universal law, it follows that the object of government must be the 


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securing of these fundamental and unalienable rights, and that therefore 
the individual has certain fundamental and unalienable rights against 
the government to prevent and restrain it from destroying or diminish¬ 
ing these rights. 

The doctrine that there are fundamental rights of the individual 
against the government was declared in the Declaration of Independence. 
The words following the statement of the doctrine that all men are cre¬ 
ated equal and therefore have certain unalienable rights, are: “To secure 
these [fundamental and unalienable] rights, governments are instituted 
among men, deriving their just powers from the consent of the gov¬ 
erned. ” To “ secure ” these rights is to recognize and protect them. The 
statement negates the idea that the government creates these rights. 
It necessarily implies that these rights are created by a law supreme over 
governments and peoples, which governments and peoples recognize. 
The securing of these fundamental rights is thus declared to be the 
object for which all governments are instituted. All governments can 
do is to create artificial or remedial rights, for the purpose of securing 
fundamental rights. The protective action of governments in main¬ 
taining armies, navies, fortifications, courts and police, the dispositive 
action of governments in admitting states, in laying out administra¬ 
tive districts and in chartering towns, cities and private corporations, 
the sociative action of governments in maintaining good relations with 
foreign nations and with annexed countries, the constructive action of 
governments in building ways of communication, in providing public 
utilities, in entering in various ways into cooperative business opera¬ 
tions with moneys collected by taxation, as well as the permissive and 
prohibitive action of governments in regulating the action of private 
persons, public officials, and corporations, all have for their object the 
creation of artificial or remedial rights whereby the fundamental and 
unalienable rights may be secured. In all the vast work of government 
there is thus involved an act of judgment concerning whether the act 
ordered to be done by public officials or the things ordered to be con¬ 
structed at public expense, will be in aid and protection of the funda¬ 
mental rights of the individuals affected, and whether the act prohibited 
or conditionally permitted to individuals is one which it is necessary to 
prohibit or conditionally permit, in order to secure fundamental rights. 

The Declaration, in asserting merely that governments are instituted 
among men, implies that governments may in some cases rightfully be 
instituted for a people by internal force or by the external power of 
another people. In declaring, however, that all governments, in what- 


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ever manner they may be instituted, have for their object the securing 
of the fundamental and unalienable rights of the individual, and that 
they derive their “just” powers—that is, their power to secure these 
fundamental and unalienable rights—from the consent of the governed, 
it is necessarily implied all governments, however instituted, are the 
agents of the governed, and that whenever the governed have attained 
the capacity of consenting to the exercise of such just powers, they have 
the right to institute their own government. When the people governed 
institute their own government, however, it follows from the Declara¬ 
tion that it is their duty to recognize the fundamental and unalienable 
rights of the individual not only against other individuals, but also 
against the government itself, and to make these rights effective. 

The Declaration of Independence is silent as to the manner in which 
the fundamental and unalienable rights of the individual against the 
government to restrain it from destroying or diminishing his fundamental 
rights are to be made effective. This problem had, however, been partly 
solved at the time the Declaration was made. The solution was, for 
the people to impose such constitutional prohibitions upon the govern¬ 
ments as were found needful for the purpose of securing these rights. 
The practice of imposing such constitutional prohibitions or governments 
arose among the people of England. The belief in the necessity of such 
constitutional prohibitions was held with peculiar tenacity by those who 
emigrated from the British Islands to the American colonies prior to 
the Revolution. The American colonists were Englishmen, Scotchmen, 
Irishmen and Welshmen of the most progressive and liberty-loving 
type, with an infusion of persons of the same type from the nations 
of Europe, who insisted that every expedient found useful at home for 
the maintenance of individual liberty and peaceful society should be 
transplanted to their new home and made effective there. 

From early times it had been the practice of the English people, when 
they perceived that a certain kind of governmental action had a tendency 
to destroy or diminish fundamental rights, to compel the government to 
concede to them that it would not act in that manner. Having obtained 
such a concession, they made it a part of the fundamental and supreme 
law of the land, binding on the government itself. When they perceived 
that a particular kind of governmental action had a tendency to destroy 
fundamental rights unless taken in a certain manner or by a certain 
process, they compelled their government to concede that all this kind 
of action of government except that taken in the conditional manner, 
should be prohibited; and they made this conditional prohibition a 


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PROCEEDINGS OF THE 


part of the fundamental and supreme law of the land. Thus, through 
the dealings between the people of England and their governments and 
through the dealings of the people of the American colonies with their 
governments, there had been evolved and formulated, at the time of the 
American Revolution, a number of constitutional prohibitions, some 
absolute and some conditional, all designed to secure fundamental 
rights. The instruments in which these constitutional prohibitions 
were formulated were Magna Charta, the English Bill of Rights, the 
Massachusetts Body of Liberties, the English Habeas Corpus Act, the 
English Declaration of Rights and the Virginia Declaration of Rights. 
These constitutional prohibitions, however, at the time the United States 
came into existence, had not been made effective as the supreme written 
law of the land, but were only mandates from the people to the legisla¬ 
ture and executive which were enforced, so far as they were enforced at 
all, by political or revolutionary action of the people. 

When the American Colonies, as States, immediately before and after 
the Declaration of Independence, established written constitutions, they 
inserted in them, with a greater or less degree of completeness, the con¬ 
stitutional prohibitions against governmental action, as then formulated 
by the English-speaking peoples. When the Constitution of the United 
States was formed and the general government of the Union thus given 
full powers for the general purposes, no constitutional prohibitions 
against the general government were at first inserted; but by the insist¬ 
ence of the States, nine amendments were almost immediately adopted, 
containing all the constitutional prohibitions against action by the gen¬ 
eral government theretofore formulated in England and the Colonies 
for the protection of fundamental rights. The Constitution imposed 
on the States some constitutional prohibitions, but left it doubtful 
whether the general government had superintending and correcting 
power over the States for the purpose of making these prohibitions 
effective. The fourteenth amendment imposed further prohibitions 
on state action and gave the general government the needful superin¬ 
tending and correcting powers . 1 

The Supreme Court of the United States has used language, in speak¬ 
ing of the fundamental rights of the individual, which shows that, in 
the opinion of the court, there are, according to our philosophy, funda¬ 
mental rights of the individual under a law which is supreme even over 
the Constitution, and that the Constitution recognizes and guarantees 

1 Civil Rights Cases, 109 U. S. 1, 23. 


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these rights. It has spoken of ‘‘certain fundamental rights, recognized 
and declared, but not granted or created, in some of the amendments 
to the Constitution” and which “are thereby guaranteed . . . . 

against violation or abridgment by the United States, or by the States, 
as the case may be. ” 2 

The Supreme Court also, in the Insular Cases recognized that some of 
the prohibitions in the Constitution relate to “natural rights.” Its 
words were : 3 

We suggest, without intending to decide, that there may be a dis¬ 
tinction between certain natural rights, enforced in the Constitution 
by prohibitions against interference with them, and what may be 
termed artificial or remedial rights, which are peculiar to our own 
system of jurisprudence. Of the former class are the rights to one’s 
own religious opinions and to a public expression of them, or, as some¬ 
times said, to worship God according to the dictates of one’s own con¬ 
science; the right to personal liberty and individual property; to free¬ 
dom of speech and of the press; to free access to courts of justice, to due 
process of law, to an equal protection of the laws; to immunities from 
unreasonable searches and seizures, as well as cruel and unusual pun¬ 
ishments; and to such other immunities as are indispensable to a free 
government. Of the latter class are the rights to citizenship, to suf¬ 
frage .... and to the particular methods of procedure pointed 
out in the Constitution, which are peculiar to Anglo-Saxon jurispru¬ 
dence. 

These “natural rights” have since been fully recognized by the 
Supreme Court, and to them the name “fundamental rights” has been 
definitively applied . 4 

The Supreme Court has also distinguished between those consti¬ 
tutional prohibitions of governmental action which are for the purpose 
of securing the fundamental rights of the individual, and the consti¬ 
tutional limitations which arise out of qualified grants of power. In 
practice, the former are treated as fundamental, and hence all other 
provisions of our constitutions are interpreted so as not to conflict with 
them, and all governmental action inconsistent with them is nullified. 
The Supreme Court has said of the prohibitions imposed on the United 
States by the Constitution which concern fundamental rights, that they 
“go to the very root of the power of congress to act at all, irrespective 

2 Logan vs. The United States, 144 U. S., 263, 293. 

3 Downes vs. Bidwell, 182 U. S., 244, 282. 

4 Hawaii vs. Mankichi, 190 U. S. 197, 217, 218; Dorr vs. United States, 195 
U. S. 138, 144, 148. 


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PROCEEDINGS OF THE 


of time or place .” 5 The same idea was expressed more fully in the same 
case as follows : 6 

There are general prohibitions in the Constitution in favor of the 
liberty and property of the citizen, which are not mere regulations as 
to the form and manner in which a conceded power may be exercised, 
but which are an absolute denial of all authority under any circum¬ 
stances or conditions to do particular acts. In the nature of things, 
limitations of this character cannot be under any circumstances trans¬ 
cended, because of the complete absence of power. 

In the above quotations from the decisions of the Supreme Court, 
only the constitutional prohibitions imposed on the government of the 
United States are considered. As, however, all American state con¬ 
stitutions impose substantially the same constitutional prohibitions 
upon state governments, the same line of reasoning applies to these. 
Moreover, the fourteenth amendment places upon the United States 
government the responsibility for seeing to it that the States observe 
the most fundamental of these constitutional prohibitions. 

The proposition which was above advanced as the first basic propo¬ 
sition of the American philosophy—that there are certain fundamental 
and unalienable rights of the individual against all other individuals 
and hence certain fundamental and unalienable rights of the indi¬ 
vidual against the government, which can be most effectively secured 
by constitutional prohibitions against certain forms of governmental 
action contained in written constitutions and made the most funda¬ 
mental part of the supreme law of the land—would therefore seem to 
have been established. 

The proposition advanced as the second basic proposition of the 
American philosophy—that all organized communities are corpora¬ 
tions—doubtless requires no such elaboration as the first. 

We have seen that from this first proposition it follows that govern¬ 
ments are agents of the governed for a definite purpose—the securing 
of the fundamental and unalienable rights. The people governed are 
the principals, whether they institute their government or not; and 
when they attain the capacity of securing these rights, they may right¬ 
fully institute their own governments, and become the responsible 
principals in fact. Thus we have a collective body of principals and a 
collective group of agents organically and permanently united under a 

5 Downes vs. Bidwell, 182 U. S. 244, 277. 

6 Downes vs. Bidwell, 182 U. S. 244, 294, 295. 


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common name. When the idea of a corporation is reduced to its essence, 
this is exactly what a corporation is. The governed and the govern¬ 
ment in such case form an artificial personality and we call this artificial 
personality a corporation. All corporations require for the carrying out 
of the agency a written constitution, which is the supreme internal law 
of the corporation and also an instrument of recognition of the supreme 
external law under which the corporation exists. Every written con¬ 
stitution is also a power of attorney from the members of the corpora¬ 
tion, as principals, to the governing board, as agents, which declares 
and defines the objects of the corporation, and makes a distribution of 
powers and functions among the various parts and branches of the 
governing agency. 

It is because we believe that all organized communities are corpora¬ 
tions that we provide written constitutions for all organized communi¬ 
ties under the American system. In independent organized communi¬ 
ties, called States, the people make the constitution through a specially 
created constitution-making body of representatives. For municipal 
corporations, the constitution or charter is enacted by the legislature of 
the State, though usually the legislature merely registers the charter 
prepared by the people of the municipality. The constitution of a 
State is made the supreme law of the land, and contains constitutional 
prohibitions addressed by the people to all branches of the government, 
forbidding the kinds of governmental action deemed destructive of or 
dangerous to the fundamental rights of the individual. These pro¬ 
hibitions equally apply to all the municipal and other corporations of 
the State, since these exist in subordination to the State. In all consti¬ 
tutions of States, the functions of government are distributed among 
the parts of the governing agency (and in the case of federal States 
between the member States and the Union), so as to establish proper 
checks and balances between the parts and members, and enable them 
all to work together harmoniously in the accomplishment of the object 
of the corporation. 

The corporate form of action is necessarily democratic, since all the 
members assembled have the ultimate control. It is necessarily repre¬ 
sentative, especially as respects legislative action, since all the members 
cannot take the time to meet and deliberate concerning the by-laws of 
the corporation, and must therefore elect delegates to represent them for 
this purpose. When corporate transactions are widely extended, the 
tendency is for corporations to form themselves into a greater corpora¬ 
tion which is given jurisdiction for the general purposes. Thus the 


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PROCEEDINGS OF THE 


corporate form of action necessarily results in corporations organized 
on federal principles. 

The corporate form of organization requires that there should be some 
superintending agency within every corporation or external to it, to pre¬ 
vent the corporation from violating the object for which it was created, 
and to prevent particular governmental agents from going beyond the 
functions assigned to them. In corporations for social or industrial 
purposes, when the internal superintending agency proves inadequate, 
the courts are made external superintending agents for this purpose. 
Under the American system, the courts exercise this superintending 
function also for all organized communities, and thus the courts of the 
States and the United States exercise this function under the various 
constitutions. As, however, the object of all our governments is to 
secure the fundamental and unalienable rights of the individual, the 
courts under our system, have the function, in cases arising under the 
prohibitions of our written constitutions concerning fundamental rights, 
of judging whether or not the action ordered, permitted or prohibited 
by the legislature or the executive is contrary to the constitutional pro¬ 
hibitions, and hence of judging whether or not it is an infringement of 
these fundamental rights. In this particular class of cases the courts, 
who are themselves only a part of the governing agency, cannot, of course, 
be allowed to have absolute finality, though in the vast majority of cases 
the decisions of courts of final jurisdiction, even in this class of cases, 
have been and doubtless always will be satisfactory to the people and 
will be accepted as final. In the exceptional cases, some method of 
revision must of course be provided, but the method adopted must be 
such as will be most likely to secure fundamental rights, and the most 
careful safeguards must be provided so that it shall be understood that 
the process of revision is solely for this purpose, and so that the revision 
shall really have this effect. 

Our philosophy is thus a complete and logical whole. The doctrine 
that there are certain universal and unalienable rights of the individual 
under a supreme law which we recognize as the law of God, or as the law 
of nature, or the law of the society of nations, conforms to our belief 
in the moral worth and dignity of the individual. From the existence 
of these fundamental rights, it follows that the individual has correlative 
rights against the government, that all government is an agency to secure 
the fundamental rights, and that all organized communities are corpora¬ 
tions. We therefore insist upon the corporate form of organization for 
all American States, with its democratic, representative and federal 


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institutions, with its written constitutions containing prohibitions against 
governmental action destructive of or dangerous to fundamental rights, 
and with its superintendence by the courts as tribunals bound to apply 
these constitutional prohibitions as fundamental and supreme law, sub¬ 
ject to revision in cases involving fundamental rights by such a special 
tribunal or such special electoral process as the people of the state or 
nation may think best adapted to secure these rights. We regard the 
corporate form of organization as the only form which is logically con¬ 
sistent with our philosophy, and as the most suitable form by which to 
secure the supremacy of this higher law and the universal and unalienable 
rights of the individual under that law. 

Having thus reached a conclusion concerning the general American 
philosophy of government, it remains to consider how we apply this 
philosophy in our relationships with the annexed countries. 

If there are fundamental and unalienable rights of the individual, 
they are, as has been shown, universal. They are rights which equally 
belong to all men under a supreme universal law. The doctrine of funda¬ 
mental rights and all that part of our philosophy on which we base our 
doctrine of fundamental rights, therefore, we are logically compelled to 
recognize as in force everywhere in the world exactly as in the United 
States. We hold that every person living has these fundamental rights, 
and that wherever they are not recognized and secured by government, 
the situation is abnormal and temporary. It is therefore our primary 
duty to all annexed countries to institute governments for them which 
will secure these rights. This we have actually done. In the instructions 
of President McKinley to the Philippine commission charged with taking 
over the civil government of the Philippines from the military authori¬ 
ties, it was said: 

There are certain great principles of government which have been 
made the basis of our governmental system, which we deem essential 

to the rule of law and the maintenance of individual freedom. 

There are also certain practical rules of government which we have 
found essential to the preservation of these great principles of liberty 

and law.These principles and these rules of government 

must be established and maintained in [the] islands for the sake of the 
liberty and happiness [of the people of the islands], however much 
they may conflict with the customs or laws or procedure with which 

they are familiar.Upon every division and branch of the 

government of the Philippines, therefore, must be imposed these in¬ 
violable rules: 




88 


PROCEEDINGS OF THE 


That no person shall be deprived of life, liberty or property without 
due process of law; that private property shall not be taken for public 
use without just compensation; that in all criminal prosecutions the 
accused shall enjoy the right to a speedy and public trial, to be in¬ 
formed of the nature and cause of the accusation, to be confronted with 
the witnesses against him, to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel for his de¬ 
fence; that excessive bail shall not be required, nor excessive fines im¬ 
posed, nor cruel and unusual punishment inflicted; that no person 
shall be put twice in jeopardy for the same offence, or be compelled in 
any criminal case to be a witness against himself; that the right to be 
secure against unreasonable searches or seizures shall not be violated; 
that neither slavery nor involuntary servitude shall exist except as a 
punishment for crime; that no bill of attainder or ex post facto law shall 
be passed; that no law shall be passed abridging the freedom of speech 
or of the press or the rights of the people to peaceably assemble and 
petition the government for a redress of grievances; that no law shaU be 
made respecting an establishment of religion or prohibiting the free 
exercise thereof, and that the free exercise and enjoyment of religious 
profession and worship without discrimination or preference shall for¬ 
ever be allowed. 

The Supreme Court of the United States, in a case involving the 
fundamental rights of an individual in the Philippines, quoted these 
instructions, and commented on the statement of fundamental principles 
which they contain, as follows: 7 

These words are not strange to the American lawyer or student of con¬ 
stitutional history. They are the familiar language of the Bill of Rights, 
slightly altered in form, as found in the first nine amendments of the 
Constitution of the United States, with the omission of the provision 
preserving the right of trial by jury and the right of the people to bear 
arms, and adding the prohibition of the thirteenth amendment against 
slavery or involuntary servitude except as a punishment for crime, 
and that of art. 1, § 9 to the passage of bills of attainder and ex post 
facto laws. These principles .... were carefully collated from 
our own Constitution, and embody almost verbatim the safeguards of 
that instrument for the protection of life and liberty. 

When Congress came to pass the act of July 1, 1902, [the Organic 
Act of the Philippines], it enacted, almost in the language of the Presi¬ 
dent’s instructions, the Bill of Rights of our Constitution. In view of 
the express declaration of the President, followed by the action of 
Congress, both adopting, with little alteration, the provisions of the Bill 
of Rights, there would seem to be no room for argument that in this 
form it was intended to carry to the Philippine Islands those principles 

7 Kepner vs. United States, 195 U. S. 100, 123, 124. 


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of our government which the President declared to be established as 
rules of law for the maintenance of individual freedom. 

How can it be successfully maintained that these expressions of 
fundamental rights, which have been the subject of frequent adjudi¬ 
cation in the courts of this country, and the maintenance of which has 
been ever deemed essential to our government, could be used by Congress 
in any other sense than that which has been placed upon them in con¬ 
struing the instrument from which they were taken. 

It was undoubtedly the purpose of the President and Congress, in 
thus establishing in the Philippines these “ great principles of govern¬ 
ment which have been made the basis of our governmental system, which 
we deem essential to the rule of law and the maintenance of individual 
freedom,” and these “ practical rules of government which we have found 
essential to the preservation of the great principles of liberty and law,” 
to extend our philosophy of government and the fundamental principles 
of our Constitution to the Philippines, in case such extension was neces¬ 
sary. At that time it was uncertain whether it was necessary that such 
extension should be made by act of Congress, or by executive action 
authorized or ratified by Congress, or whether such extension occurred 
automatically and as a necessary result from our philosophy and the 
principles of the Constitution, by the mere fact of annexation. Since that 
time the Supreme Court has resolved that doubt, to the satisfaction of 
the people of the United States, of the annexed countries and of the civ¬ 
ilized world in general, by holding that our philosophy of government 
and the essentials of our Constitution and our political system do ex¬ 
tend of their own force to every annexed country at the moment of 
annexation and by the mere fact of annexation. This has been done 
by the court holding that all the prohibitions of the Constitution having 
for their purpose the securing of the fundamental rights of the indi¬ 
vidual, are in force in every annexed country from the moment of 
annexation. 8 

The specification of the constitutional prohibitions which secure 
fundamental rights, made in the President's instructions above quoted, 
ratified in the Organic Act of the Philippines, and held to be correct by 
the Supreme Court, with the approval of the people of the United States 
and of the annexed countries, has definitely determined the parts of our 
Constitution which form our Bill of Fundamental Rights and which 
extend to their own force to the annexed countries. There is, therefore, 

* Hawaii vs. Mankichi, 190 U. S. 197, 217; Dorr vs. United States, 195 U. S. 
138, 144, 148. 


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no occasion to insert a similar Bill of Fundamental Rights in existing 
Organic Acts by amendment or to embody such a Bill of Rights in Or¬ 
ganic Acts hereafter enacted. Organic Acts expressly or impliedly 
extending the Constitution of the United States to annexed countries 
are, so far as the Bill of Fundamental Rights is concerned, merely 
declaratory of the existing situation. Even if an Organic Act of an 
annexed country makes no reference to the Constitution of the United 
States and contains no Bill of Rights, the annexed country has the bene¬ 
fit of the Bill of Fundamental Rights as collated in the President's in¬ 
structions above quoted, which have been approved by the Supreme 
Court, as fully as if this were embodied in its own Organic Act; and, in 
legal effect, all annexed countries have had the benefit of these consti¬ 
tutional prohibitions from the instant of their annexation. Thus, as the 
logical result of our philosophy of government—or, as the lawyers say, 
of the underlying principles of the Constitution—the effect of annexa¬ 
tion of a country by the United States is to make every person there 
residing who elects to come under the jurisdiction of the United States, 
a free man, equal in his fundamental rights with every citizen of the 
United States—an inheritor of the accumulated wisdom and experience 
of the centuries in safeguarding individual liberty and human society, 
and a participant in the work of evolving new safeguards for the same 
purpose. 

Consistently with our general philosophy, also, we regard each of the 
annexed countries as a state and a corporation. We consider the in¬ 
habitants of each country as the members of the corporation and we 
regard the government, notwithstanding the fact that it may contain cit¬ 
izens of the United States appointed by the United States, as the govern¬ 
ing agency of the annexed country for the purpose of securing the funda¬ 
mental rights of the individual. 

Those parts of the Constitution of the United States which distribute 
or recognize the distribution of the functions of government within the 
United States, according to our democratic, representative and federal 
forms are, as we recognize in the organic acts or constitutions enacted 
by Congress for the annexed countries and as the Supreme Court has 
decided, in force in the annexed countries to the extent that the people 
of the countries are fitted to act according to these forms. It is of course 
impossible reasonably to apply this part of our philosophy in any other 
manner. 9 

9 Downes vs. Bidwell, 182 U. S. 244 ; 290-293; Dorr vs. United States 195 U. S. 
138, 143-145. 


AMERICAN POLITICAL SCIENCE ASSOCIATION 


91 


After the Spanish War, before we fully realized what our philosophy 
involved, and while we were under pressure of the necessity of using some 
political terms to express our relationship with the annexed countries, 
certain political terms brought over from the usage of other nations 
having a philosophy of government different from ours, came into use 
to describe this relationship. In view of our philosophy as now estab¬ 
lished, it seems necessary to discard all the old terms and to substitute 
new ones, which will be consistent with our ideas and acceptable to the 
people of the annexed countries. The only two of the old terms which 
have survived with us are the words “dependencies” and “possessions.” 
Both of these are feudal terms, based on the assumption that the monarch 
possessed his realm and its appurtenances and dependencies, as his 
property. The outlying regions beyond the borders of the realm—the 
dependencies—were under the practically absolute power of the feudal 
monarch. They were regarded almost in the light of his private proper¬ 
ty. The words “dependency” and “possession” cannot, it would seem, 
logically be used by us, in view of our philosophy as now determined, 
except as applied to small isolated and practically uninhabited places 
under our jurisdiction. “Empire” is the Roman imperium, the absolute 
power of the military commander. “Dominion” is the Roman do¬ 
minium, the absolute power of the Roman land-owner over his land and 
all persons and things thereon. “ Colony ” is the Roman colonia, the body 
of coloni, or farmers, sent out with the military garrisons to the walled 
towns built to hold conquered and annexed lands and populations. 
“Territory” is the Roman territorium, a place held by terror—that is, 
the region adjacent to the walled town which the coloni , or farmers, 
cultivated under the protection of the military garrison, the incursions 
of the natives being prevented by the terror which the garrison inspired. 

The word-root from which we may derive terms appropriate to ex¬ 
press our ideas of the relationship between nations and their annexed 
countries, according to our philosophy as now established, seems to be 
the root of the Latin word socius. Socii were friends, allies and part¬ 
ners—persons who recognized each other as equals before the law as 
respects their fundamental rights, and who were working together in 
some operation of common benefit. In international politics, under 
the influence of humane notions, we are beginning to speak of the whole 
world as “the society of nations.” The New England Confederation 
of 1643 described itself as a “consociation.” The term “associate 
states” would seem to be appropriate to apply to annexed countries 
which on account of their distance from us, or for other reasons, we have 


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not incorporated into the United States. Those annexed countries 
which we have incorporated into the United States but not admitted as 
states into the Union, we might call “insociate states.” The whole 
political organization composed of the United States and its associate 
and insociate States might be called “the American Sociation. ” 

It is clear that it does not follow from the American philosophy that 
our annexed countries have the right of immediate or ultimate interna¬ 
tional independence. The Declaration based the rights of the United 
Colonies to international independence, first, on the fact that Great Brit¬ 
ain had shown, by a long series of acts, that it denied the existence of 
fundamental rights in the practical sense in which the Americans believed 
in them, and, second, on the fact that the Colonies, as United States, 
were fitted to undertake the duties and responsibilities of an independent 
nation. Neither of these facts exists in the case of our annexed coun¬ 
tries. We not only institute governments among them to secure to 
them these fundamental rights, but by means of written constitutions 
with which we provide them by our legislative action, we give them the 
benefit of those practical rules of government formulated in constitu¬ 
tional prohibitions forbidding certain kinds of governmental action 
which the experience of the civilized world has shown to be destructive 
of or dangerous to individual liberty and civilized society, thus making 
the security of fundamental rights effective. By these same constitu¬ 
tions we implant among them the rudiments of those democratic, repre¬ 
sentative and federal forms and institutions which are shown by ex¬ 
perience and reason to be necessary in order that communities may them¬ 
selves secure the fundamental rights of the individual and live in true 
liberty, and we take measures to develop these forms and institutions 
as rapidly as possible. We make the courts the guardian of these con¬ 
stitutions, and all provisions relating to fundamental rights receive the 
same interpretation in the annexed countries as at home. The situation 
as between the United States and its annexed countries as respects 
the securing of fundamental rights is therefore exactly the reverse of 
that which existed between Great Britain and the American Colonies in 
1776. Moreover, none of the annexed countries is fitted to fulfil inter¬ 
national responsibilities. The situation of these countries is therefore 
in this respect exactly the reverse of that of the United Colonies in 1776. 

But though our philosophy does not lead to international independ¬ 
ence of the annexed countries, it does follow from it that the annexed 
countries have the right, as they progress in the art of self-government 
and in appreciation of their duties to themselves and to the rest of the 


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93 


world, to be progressively relieved from habitual control by the legis¬ 
lature of the nation and to have the powers of their local legislatures 
and the participation of their people in their own government progres¬ 
sively increased. Thus it follows that in lieu of the control by Congress, 
there should be substituted, in the case of each annexed country, by a 
gradual process proportioned to its progress in civilization, a diplo¬ 
matic control of the relationships between the United States and the 
annexed country, in the interests of the American Sociation and the so¬ 
ciety of nations, under the habitual and ordinary charge of the chief 
executive of the nation; the annexed countries participating by repre¬ 
sentation in this diplomatic control, and the Congress intervening only 
in extraordinary cases, as a superintending, nullifying, correcting or 
registering body. This substitution of diplomatic for legislative control 
is what the American Colonies demanded from Great Britain. The 
substitution has actually been made as respects the relations between 
Great Britain and the self-governing annexed countries of Canada, 
Australia, New Zealand and South Africa. It is due to the dignity of 
self-governing annexed countries that such a substitution should be 
made. 

When the inhabitants of the distant annexed countries become skilled 
in the art of self-government and familiar with our philosophy and our 
system, they will undoubtedly perceive the broad liberty they obtain 
while in association with us, and will realize that international independ¬ 
ence might prove to be fictitious and might expose them to exploitation 
by local dictators and foreign intriguers. If we now recognize these 
countries as associate states and assure them, as soon as they become 
skilled in the art of self-government, an independence limited by a con¬ 
trol on our part which will be essentially diplomatic and in which they 
themselves will participate, it is to be expected that they will voluntarily, 
though gradually, abandon all schemes for international independence 
and finally come to accept with satisfaction and appreciation a relation¬ 
ship of permanent connection and diplomatic association with the United 
States. 


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